Are Patents and Copyrights Morally Justified? - Tom G. Palmer

862 Harvard Journal of Law & Public Policy [Vol. 13
Ifthe foundation of the natural right to ownership is ownership
in one’s self, however, then claims to own ideas or other
ideal objects conflict with this right to self-ownership, for such
a claim is no less than a claim of the right to control how another
uses his body. When one claims to own a dance step, for
example, one claims that no one else can so move his body as
to perform this dance, and therefore that one has a right of
dominion over the bodies of everyone else. Similarly, a copyright
over a musical composition means that others cannot use
their mouths to blow air in certain sequences and in certain
ways into musical instruments they own without obtaining the
permission of the copyright holder, Thus the real objects the
copyright holder controls are the body and instruments of the
other musicians, The same holds true ofa patent governing the
combination ofa group of chemicals or the arrangement ofthe
parts of a fishhook.
The theory ofproperty that emphasizes personality also has
something to add to ourunderstanding ofproperty. The development
of personality and moral agency is certainly a good
thing, and for full development it requires at least a minimal
sphere of property. Aristotle recognized, for example that liberality
is impossible without property and liberty, the necessary
conditions for the expression of this ~ But the more
elaborate attempts to use this as a foundation for property,
such as those ofHegel andhis epigoni, suffer from serious philosophical
difficulties. This is most notable when a theory ofan
inalienable droit moral for artists is built upon it. The relationship
between artist, art work, and audience is a complex one,
but it does not lend support to the idea that the work of the
artist is an extension of the artist’s personality, capable ofbeing
damaged in a way analogous to the bodily damage that could
be inflicted on the artist. Personality and property are indeed
related, as expressed by Richard Overton’s statement: “To
But we must also live in aworldof strangers, in which “concrete, commonly perceived
aims” cannotbe assumed, nor can knowledge ofthe needs or abilities of others. “Part
of our present difficulty is that we must constantly adjust our lives, our thoughts and
ouremotions, in orderto live simultaneously within differentkinds oforders according
to different rules. If we were to apply the unmodified, uncurbed, rules of the microcosmos
([that is], of the small band or troop, or of, say, our families) to the macrocosmos
(our wider civilization), as our instincts and sentimental yearnings often make
us do, we would destroy it. Yet if we were always to apply the rules of the extended
order to our more intimate groupings, we would crush them. So we must learn to live
in two sorts ofworlds at once.” Id. at 18.
161. See ARIsTomE, supra note 129, at 61.